Chapter 27 Impeachment A. GENERALLY § 1. In General; House and Senate Functions § 2. Who May Be Impeached § 3. Grounds for Impeachment § 4. — Impeachable Misconduct § 5. Effect of Adjournment B. PROCEDURE IN THE HOUSE § 6. In General; Initiation and Referral of Charges § 7. Committee Investigations § 8. Consideration in the House; Voting C. PROCEDURE IN THE SENATE § 9. In General § 10. Voting and Judgment Research References U.S. Const. art. I, §§ 2, 3; art. II, § 4 3 Hinds §§ 2001-2515 6 Cannon §§ 454-552 Deschler Ch 14 Manual §§ 173-176; 601-620 A. Generally § 1. In General; House and Senate Functions Impeachment is a constitutional remedy to address serious offenses against the system of government. It is the first step in a remedial process— that of removal from public office and possible disqualification from holding further office. The purpose of impeachment is not punishment; rather, its function is primarily to maintain constitutional government. Deschler Ch 14 App. pp 726-728; 105-2, Dec. 19, 1998, pp 28107-9. Impeachment proceedings have been initiated more than 60 times since the adoption of the Constitution. 3 Hinds § 2294; 6 Cannon § 498; Deschler 603 §2 HOUSE PRACTICE Ch 14 § 1. Nineteen of these cases resulted in impeachment by the House: President Andrew Johnson in 1868, Secretary of War William W. Belknap in 1876, Senator William Blount in 1797, President William J. Clinton in 1998, and 15 Federal judges. Only eight impeachments have led to Senate convictions—all of them Federal judges. An impeachment is instituted by a written accusation, called an ‘‘Article of Impeachment,’’ which states the offense charged. The articles serve a purpose similar to that of an indictment in an ordinary criminal proceeding. Manual § 609. The power of impeachment is bifurcated by the Constitution. The House is given the ‘‘sole Power of Impeachment,’’ and the Senate is given ‘‘the sole Power to try all Impeachments.’’ U.S. Const. art. I, § 2, cl. 5; § 3, cl. 6. Impeachments may be brought against the ‘‘President, Vice President, and all civil Officers of the United States.’’ Conviction of ‘‘Treason, Brib- ery, or other high Crimes and Misdemeanors’’ is followed by ‘‘removal from Office’’ and may include ‘‘disqualification to hold’’ further public of- fice. U.S. Const. art. I, § 3, cl. 7; art. II, § 4. The term ‘‘impeach’’ is used in different ways at various stages of the proceedings. A Member may claim time on the floor to ‘‘impeach’’ an offi- cer in presenting a resolution or memorial. 3 Hinds § 2469. The House votes to ‘‘impeach’’ in the constitutional sense when it adopts an impeachment resolution and accompanying articles. § 8, infra. The Senate then conducts a trial on these articles and either convicts by two-thirds vote or acquits the ‘‘impeached’’ Federal official. § 9, infra. § 2. Who May Be Impeached The ‘‘President, Vice President, and all civil Officers of the United States’’ are subject to removal under the impeachment clause of the Con- stitution. U.S. Const. art. II, § 4. A private citizen who has held no public office may not be impeached. 3 Hinds §§ 2007, 2315. The term ‘‘civil Officers’’ in article II, section 4 of the Constitution re- fers to those appointed by the President under article II, section 3, clause 2. The term is broad enough to include all officers of the United States who hold their appointment from the Federal government, whether their duties be executive, administrative, or judicial, or whether their position be high or low. Impeachment—Selected Materials, Committee on the Judiciary, H. Doc. No. 93-7, Oct. 1973, p 691. On the other hand, military officers are not subject to impeachment, since they are subject to disciplinary measures according to military codes. 3 Willoughby, The Constitution (1929) § 929; 9 Hughes, Federal Practice (1931) § 7228. 604 CHAPTER 27—IMPEACHMENT §2 A Member of Congress is not a ‘‘civil Officer’’ within the meaning of the impeachment provisions of the Constitution. 3 Hinds §§ 2310, 2316. The contention that a Senator was not a civil officer within the meaning of the impeachment provisions of the Constitution was sustained by the Senate in 1799. The Senate dismissed impeachment charges brought to its bar by the House, finding that an impeachment of a Senator was beyond its jurisdic- tion. 3 Hinds § 2318; § 4, infra. Federal judges are subject to removal under the impeachment provisions of the Constitution. Of the 19 impeachments reaching the Senate, 15 have been directed at Federal judges, and in eight of these cases the Senate voted to convict: Pickering in 1803 (3 Hinds §§ 2319-2341); Humphreys in 1863 (3 Hinds §§ 2385-2397); Archbald in 1912 (6 Cannon §§ 498-512); Ritter in 1936 (S. Doc. No. 74-200, 1936); and Claiborne, Nixon, Hastings, and Porteous in 1986, 1988, 1989, and 2010, respectively (Manual § 176). Impeachment proceedings were initiated against a Member of the Presi- dent’s Cabinet in 1876, when impeachment charges were filed against Wil- liam W. Belknap, who had been Secretary of War. The House and Senate debated the power of impeachment at length and determined that the Sec- retary remained susceptible to impeachment and trial even after his resigna- tion. 3 Hinds §§ 2007, 2467. In 1923, the House adopted a resolution stating that the investigation of Attorney General Harry M. Daugherty had revealed no grounds for impeachment and laying the resolution authorizing the inves- tigation on the table. 8 Cannon § 2660. In 1978, the House voted to table a privileged resolution impeaching Andrew Young, the United States Am- bassador to the United Nations. 95-2, July 13, 1978, p 20606. In 2016, the House refused to lay on the table a resolution impeaching Internal Revenue Service Commissioner John Koskinen and instead referred the resolution to the Committee on the Judiciary. 114-2, Dec. 6, 2016, pll. A Commissioner of the District of Columbia has been held by the House not to be a civil officer subject to impeachment under the Constitu- tion. 6 Cannon § 548. Under section 596(a) of title 28, United States Code, an independent counsel appointed to investigate the President may be im- peached. A resolution impeaching such independent counsel constitutes a question of the privileges of the House under rule IX. Manual § 604. Effect of Resignation The House and Senate have the power to impeach and try an accused official who has resigned. Deschler Ch 14 § 2. It was conceded (in the Belknap impeachment proceeding described above) that a Cabinet Secretary remains susceptible to impeachment and trial even after his resignation. 3 Hinds §§ 2317, 2318. As a practical matter, however, the resignation of an 605 §3 HOUSE PRACTICE official about to be impeached generally puts an end to impeachment pro- ceedings because the primary objective—removal from office—has been ac- complished. This was the case in the impeachment proceedings begun against President Richard M. Nixon in 1974 and Judge George English in 1926. Deschler Ch 14 §§ 2.1, 2.2. President Nixon resigned following the decision of the Committee on the Judiciary to report to the House recom- mending his impeachment, and further proceedings were discontinued. 93- 2, H. Rept. 93-1305, p 29361. Judge English resigned before commence- ment of trial by the Senate and the proceedings were discontinued at that point. 6 Cannon § 547. Judge Delahay (1873) and Judge Kent (2009) like- wise resigned prior to Senate trial and proceedings discontinued. § 3. Grounds for Impeachment Generally The Constitution defines the grounds for impeachment and conviction as ‘‘Treason, Bribery, or other high Crimes and Misdemeanors.’’ U.S. Const. art. II, § 4. When the House determines that grounds for impeach- ment exist, the articles of impeachment are presented to the Senate. Any one of the articles may provide a sufficient basis or ground for conviction. Deschler Ch 14 § 3. The phrase ‘‘high Crimes and Misdemeanors’’ has been interpreted broadly. The framers of the Constitution adopted the phrase from the English practice. At the time of the Constitutional Convention, the phrase ‘‘high crimes and misdemeanors’’ had been in use for more than 400 years in impeachment proceedings in the British Parliament. Some of these im- peachments charged high treason; others charged high crimes and mis- demeanors. The latter included both statutory offenses and nonstatutory of- fenses. Many of the charges involved abuse of official power or trust. Deschler Ch 14 App. pp 706-708. An offense must be serious or substantial in nature to provide grounds for impeachment. This requirement flows from the language of the clause itself—‘‘high Crimes and Misdemeanors.’’ Although there is some authority to the contrary, it is generally accepted that the adjective ‘‘high’’ modifies ‘‘Misdemeanors’’ as well as ‘‘Crimes.’’ Impeachment—Selected Materials, Committee on the Judiciary, H. Doc. No. 93-7, Oct. 1973, p 682. As to what constitutes a serious, impeachable offense, one commentator has said: To determine whether or not an act or a course of conduct is sufficient in law to support an impeachment, resort must be had to the eternal prin- ciples of right, applied to public propriety and civil morality. The offense must be prejudicial to the public interest and it must flow from a willful intent, or a reckless disregard of duty.... It may constitute an inten- 606 CHAPTER 27—IMPEACHMENT §3 tional violation of positive law, or it may be an official dereliction of commission or omission, a serious breach of moral obligation, or other gross impropriety of personal conduct that, in its natural consequences, tends to bring an office into contempt and disrepute. Brown, The Impeachment of the Federal Judiciary, 26 Harv. L. Rev. 684, 703, 704 (1912). The time when the offenses were committed is a factor to be taken into consideration.